Page 5152 - Week 12 - Thursday, 27 October 2011
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potentially limits the right to a fair trial and rights afforded to a defendant in criminal proceedings. While a witness identity protection certificate prevents the disclosure of an operative’s true identity in a court proceeding, this limitation on the right to a fair trial and rights in criminal proceedings is reasonable and justified and promotes a number of other rights enshrined in the Human Rights Act.
Concealing the true identity of undercover operatives, and thereby limiting the right to a fair trial and certain rights in criminal proceedings, achieves two important purposes which are in the public interest. Firstly, the personal safety of witnesses—or other people connected to the witness, such as his or her family—is protected. Secondly, the efficacy of undercover operations is preserved.
The primary purpose of the limitation is to protect the personal safety of witnesses, or others connected to the witness. This purpose promotes the right to protection of the family and children, at section 11 of the Human Rights Act, as the families of witnesses are protected by concealing the true identity of the witness. It also engages and promotes the right to privacy and freedom of movement, as it protects the operative’s right not to have his or her privacy, family and home interfered with unlawfully and his or her right to choose his or her place of residence.
The limitation on the right to a fair trial and rights in criminal proceedings is reasonable and only goes as far as is necessary to protect the personal safety of witnesses and their families. The bill only requires that the true name and address of the operative are withheld. It does not propose that the operative will be a “secret” or “anonymous” witness who does not appear before the court. Nor does it propose that the operative give evidence in court from behind a screen or by using voice distortion technology.
As an undercover witness to which a protection certificate applies is not “anonymous” in the broad sense of the word and they appear in person to give evidence, this means they can be cross-examined and their demeanour assessed by the court, allowing the tribunal of fact to make its own judgement as to their reliability.
Further protections are provided by the bill to ensure that the right to a fair trial and rights in criminal proceedings are only limited to the extent necessary to achieve the purposes of the bill. A witness identity protection certificate can only be given where it is necessary for the protection of an operative’s or another person’s safety or is necessary to protect an investigation. The chief officer must make this determination on reasonable grounds.
It is the law enforcement agency that has information about risks to an operative or an investigation. It is the chief police officer who is responsible for the health and safety of operatives and for the conduct of investigations. For these reasons, it is appropriate that the question of the risk posed by disclosure of an operative’s identity is answered by the relevant law enforcement agency.
The bill not only ensures that the defence can face the operative witness in court and observe his or her behaviour but also allows the accused to challenge the credibility of the witness without disclosing their identity. The bill does this by requiring the inclusion of certain information on a witness identity protection certificate. The
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